Citation Nr: 1141028
Decision Date: 11/03/11 Archive Date: 11/16/11
DOCKET NO. 09-34 238 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUE
Entitlement to service connection for a low back disorder.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
C. Ferguson, Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Army from August 1969 to February 1972, and was a member of the Army National Guard in 1990-1991, with no indication of federalized active duty service.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran and his wife provided testimony at an October 2010 Travel Board hearing before the undersigned at the RO. A transcript is in the claims folder.
This case was previously remanded in March 2011 for further evidentiary development and is now ready for disposition.
FINDINGS OF FACT
1. The Veteran's spine was clinically evaluated as normal at the January 1972 examination for release from active Army duty.
2. The Veteran also denied having any back trouble or recurrent back pain when he enlisted for the National Guard in September 1990, and his spine was clinically evaluated as normal at that time.
3. Based upon the evidentiary record, the Veteran's account of having suffered from back problems since his period of service is not deemed credible.
4. A preponderance of the evidence weighs against a finding that the Veteran's currently diagnosed low back disorder is causally or etiologically linked to his period of active military service, to include any event or incident therein, or that degenerative joint disease of the low back was manifested to a compensable degree within one year after discharge.
CONCLUSION OF LAW
The Veteran's low back disorder was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.
If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As will be explained below, neither the Veteran nor his representative has alleged prejudicial error, and none has otherwise been shown by the record.
In this case, the RO advised the Veteran of the evidence needed to substantiate his claim in a March 2008 notice letter. The RO further explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his claim.
In particular regard to Dingess notice requirements, the Veteran was provided with notice of how VA determines the effective date once service connection has been established in the March 2008 letter.
The Board notes that the March 2008 notice letter was sent before the initial denial of the claim, and adequately satisfied VCAA notice requirements with respect to the Veteran's claim.
The record further reflects that the Veteran has been provided with a copy of the above rating decision, the August 2009 SOC, and the August 2011 SSOC, which cumulatively included a discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. The Veteran has also been provided with ample opportunity to submit evidence and argument and to participate effectively in the processing of his claim during the course of this appeal.
In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.
Regarding VA's statutory duty to assist, the Board initially notes that the Veteran's service treatment records (STRs) are incomplete. The Board is aware that when service records are unavailable through no fault of the veteran, such as in this case, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board concludes, however, that the heightened duty to assist has been met.
The RO attempted to obtain the Veteran's complete STRs unsuccessfully and, in July 2008, a formal finding on the partial unavailability of STRs was made. In this regard, it is noted that the Veteran was notified that the RO was unable to obtain a complete copy of his STRs, and was advised that it would be helpful if he could furnish any copies of STRs from August 1969 to October 1971 in his possession (or alternative documents which might substitute for medical records, with examples listed) in a July 2008 notice letter.
The Veteran has not provided any records in response to the July 2008 letter. However, he did indicate that he was treated at the Vilsek Army Health Clinic and the Grafenwoehr Army Health Clinic in Germany during the period from April 1970 to August 1970 for back problems in service. An attempt to obtain the records was made pursuant to the Board's remand; however, no records could be obtained from those facilities. A formal finding regarding the unavailability of STRs dated in July 2011 is included in the record. 38 C.F.R. § 3.159(c)(3). The Veteran was also notified by letter in June 2011and asked to provide the records if they were in his possession. He was again advised of alternative documents that he could provide which might substitute for his STRs. The Veteran did not respond to the letter. In light of the foregoing, the Board finds that further efforts to obtain missing service records would be futile.
The Board additionally notes that the claims file contains all available evidence pertinent to this claim. VA has requested records identified throughout the development process. The Veteran was given appropriate notice of his responsibility to provide VA with any treatment records pertinent to his claimed disorder and the record contains sufficient evidence to make a decision on the claim. The Board would like to note that the case law does not lower the legal standard for proving a claim for service connection in such circumstances, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996).
In addition, the Veteran was afforded with a VA medical examination in connection with his claim in April 2011. The examiner based the opinion on review of the claims folder and examination and interview of the Veteran. The examiner provided a sound rationale in support of the conclusion. For the foregoing reasons and for reasons discussed below, the Board finds that the examination report is adequate for the purposes of this adjudication.
Further, available STRs, to include the separation report, and post-service treatment records adequately identified as relevant to the claims have been obtained, to the extent possible, and are associated with the claims folder.
The Veteran has not made VA aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Also, the Board finds that there has been compliance with its prior remand order. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Therefore, we will proceed with appellate review.
II. Pertinent Law, Facts, and Analysis
The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although we have an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).
The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).
When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.
Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).
If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).
In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.
Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).
Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57.
Combat veterans are entitled to have their statements as to injuries he sustained in a combat setting accepted, under 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). That law does not by itself, however, establish a basis for the grant of service connection. The claimant is still required to meet other evidentiary burdens as to service connection, such as whether there is a current disability or whether there is a link between service and the currently claimed disability, both of which require competent evidence. See Wade v. West, 11 Vet. App. 302 (1998) (holding that evidence of a causal nexus between an in-service event and a current disability is still required even when a veteran is shown to have participated in combat); Collette v. Brown, 82 F.3d 389, 392 (1996).
The evidentiary record contains ample evidence of a current low back disorder. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Indeed, the Veteran underwent a medical examination in April 2011, and the examiner noted a diagnostic impression of lumbosacral degenerative joint disease with spondylolisthesis of L3-L4. The Board also notes that the Veteran's VA treatment records from 2008 to 2009 include complaints and assessments of chronic low back pain. Further, in a December 2010 letter from the Veteran's private chiropractor (S.G., D.C.), it is noted that the Veteran demonstrated radiographic findings of degenerative changes in his intervertebral discs at L3/L4 and L5/S1 as well as facet arthropathy from L3 to L5.
Thus, because the Veteran is shown to have a current low back disorder, the Board will next consider whether the evidentiary record supports a finding of in-service incurrence of that condition.
In the present case, the Veteran contends that he currently suffers from a low back disorder due to multiple injuries sustained while performing his duties as a wheeled vehicle mechanic during his period of active duty.
At the Board hearing, the Veteran testified that he first injured his back while stationed in Germany in the spring or summer of 1970. He stated that he sought treatment for the injury at the Vilsek Army Medical Clinic in Germany, was given an injection of distilled water in the lower back, and was told by a medical care provider at the facility that nothing else could be done for him. He also reported that he subsequently sought treatment for his low back at another facility, the Grafenwoehr Medical Clinic, in Germany. He said he continued to experience low back pain throughout service, and reinjured his low back on numerous occasions while in "heavy ordinance, heavy equipment", to include during his service in Vietnam, but did not seek any further treatment when he returned stateside, was not given a limited duty physical profile, and did not report having back pain at separation. He stated that, for years, he self-treated his back pain with over-the-counter medication and did not receive treatment until approximately four or five years before the hearing. He then added that his back problem originated from heavy lifting in service while performing his duties in the Army, and reiterated that it has been a recurring problem ever since.
In addition to the hearing testimony, the Veteran has asserted in various written statements submitted throughout the course of his claim/appeal that his low back problems began during his period of active service and have continued since that time.
As a layperson, the Veteran is competent to report that he sustained an injury to his low back as a result of multiple injuries and heavy lifting performed as part of his duties in service, and has low back problems since that time.
In light of the Veteran's hearing testimony and written statements, the Board is required to address the credibility of his competent lay account of having sustained injury in service and having a continuity of low back problems since service.
The Board observes that the Veteran's military occupational specialty (MOS), as shown on the DD Form 214, is listed as wheeled vehicle mechanic. The Board finds that this MOS likely required heavy lifting, and deems the Veteran's account as to the physical strain involved with his duties to be credible.
However, the available STRs are devoid of any complaint, finding, or treatment referable to a low back problem. Significantly, the Veteran's January 1972 separation examination report shows that his spine was clinically evaluated as normal at that time.
The Board further observes that the Veteran's National Guard enlistment examination report dated September 1990 is included with his STRs and shows that his spine was clinically evaluated at that time. The Veteran also completed a report of medical history wherein he denied having a history of recurrent back pain. See September 1990 report of medical history. Further, the applicant medical pre-screening form dated in September 1990 similarly reveals that the Veteran denied having ever had back trouble on that form. At his Travel Board hearing, he testified that he did not feel it was necessary to mention his back trouble at his National Guard physical because he had lived with it for so long, and his duties were administrative, so lifting was not a problem for him.
The first evidence of a low back disorder is not shown until many years after separation from service. The earliest clinical documentation of a lumbosacral spine disorder included in the record is dated in 2006, approximately 34 years after the Veteran's active duty service. Further, it appears that his first mention of a complaint of low back problems allegedly related to service was in 2008, when he filed a claim of service connection; this was approximately 36 years after his separation from the Army, and he has not alleged any back injury in the National Guard. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest in benefits may affect credibility of claimant's testimony). See also 38 C.F.R.
§ 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, supra, at 1333 (Fed. Cir. 2000) (it is proper to consider Veteran's entire medical history, including lengthy period with absence of complaints or treatment).
Moreover, as stated above, the Veteran underwent a thorough medical examination in connection with his claim in April 2011. Based on a review of the claims folder and examination and interview of the Veteran, the examiner (L.W., MD/Ph.D.) concluded that Veteran's lumbosacral degenerative joint disease with spondylolisthesis was not caused by or the result of military service but was more likely than not caused by his trade as a cement finisher. The examiner explained that the Veteran gave "a vague and not medically credible history" of non-descript back pain during military service. While the examiner made reference to the Veteran's report that he had had continuous back pain since the 1970s which he had reportedly self-treated since that time, the examiner did not find his account to be credible. The examiner noted that the Veteran's September 1990 report of medical history and examination report, which were negative for any complaints of a back condition and showed no back condition on examination, contradicted the Veteran's reported history. The examiner additionally noted that the Veteran's body habitus showed the effects of a lifetime spent in his chosen trade as a cement finisher with severe osteoarthritis throughout his joints, leaving him gnarled and shrunken. (As explained by the examiner earlier in the report, the Veteran demonstrated severe osteoarthritis in his hands and feet and numerous other joints throughout his body consistent with his stated trade of concrete finishing throughout his working life). The examiner wrote that it was not credible that his work in this trade would not have taken its toll on his back as much as it had on the rest of the joints of his body.
The Board notes that the VA medical examiner's opinion was based on a thorough review of the medical history as reported by the Veteran and documented in the claims folder. The examiner also provided a thorough rationale for the conclusion, to include an assessment of the credibility of the Veteran's reported history of back problems in service. Further, the examiner is a board certified neurologist and has the requisite medical expertise to render a competent medical opinion. For these reasons, the Board affords this opinion great probative value.
The Board recognizes that the Veteran has also submitted a medical opinion from a private chiropractor (S.G., D.C.) in support of his claim. In the December 2010 letter previously mentioned above, S.G. alternatively concluded that, based on his review of the Veteran's treatment records from January 2005 to November 2010 and upon consideration of the Veteran's reported history, the Veteran's lower back disability originally began as a direct result of his service as a heavy equipment mechanic in the military.
However, the chiropractor's opinion is afforded less probative value than the opinion from the VA medical examiner. First, S.G. stressed that he had not reviewed any records prior to 2005 in formulating his conclusion. Thus, his opinion was not informed by review of the available STRs, which showed that the Veteran's spine was clinically evaluated as normal at separation from service, or National Guard enlistment records showing that the Veteran denied having a history of back problems and his spine was again clinically evaluated as normal in September 1990. While review of the STRs is not strictly required, such evidence contradicts the Veteran's reported history of having had back problems since service. Therefore, it is clear that S.G. did not have sufficient facts and data on which to base his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that review of the claims file by an examiner does not automatically render the opinion persuasive, because the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion). Second, the VA medical examiner has a greater level of medical training and expertise than the Veteran's private chiropractor. Third, while S.G. noted that the Veteran had worked as a cement finisher and plasterer since leaving the military and that his occupational duties required lots of lifting, bending, leaning, and twisting, he did not adequately address the impact of the Veteran's post-service occupation on his low back in providing the rationale for his opinion.
Thus, the available documentation contemporaneous with service does not show any complaint, diagnosis, or treatment referable to low back problems and the Veteran's spine was clinically evaluated as normal at separation. The remainder of the evidentiary record is also silent for any indication of a low back disorder until many years after service. Significantly, the Veteran's spine was again clinically evaluated as normal when he enlisted for the National Guard many years after active service (i.e., in September 1990) and he specifically denied having a history of low back problems at that time. Further, the Veteran has worked as a cement finisher since leaving service and, after review of the Veteran's medical history as documented in the claims file, the April 2011 examining physician linked the Veteran's currently diagnosed low back disorder to his post-service occupation and not his period of active military service. For reasons addressed above, the VA medical examiner's opinion is found to be more probative than the December 2010 medical opinion from the Veteran's chiropractor.
For the foregoing reasons, the Board does not find the Veteran's account of having a continuity of low back symptomatology since service to be credible, and we afford more probative value to the other evidence discussed above.
In summary, the Board finds that the credible and probative evidence of record is against finding that a low back disorder was incurred during military service or that arthritis was either manifested during service or manifested to a compensable degree in the first post-service year, and the most competent and probative evidence of record does not otherwise relate the Veteran's currently claimed low back disorder to his military service.
Therefore, based upon the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the claim for service connection for a low back disorder, and the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Entitlement to service connection for a low back disorder is denied.
____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs